IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Terra L. Page, :

Plaintiff : Civil Action 2:12-cv-00205

v. : Judge Marbley

Michael J. Astrue, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Terra L. Page brings this action under 42 U.S.C. §§405(g) and 1383(c)(3)

for review of a final decision of the Commissioner of Social Security denying her

application for Supplemental Security Income benefits. This matter is before the

Magistrate Judge for a report and recommendation on the administrative record and the

parties’ merits briefs.

Summary of Issues. Plaintiff Page maintains that she has became disabled at age

24 by epilepsy, “bad” back, anxiety and depression. (PageID 172.) Plaintiff argues that

the decision of the Commissioner denying benefits should be reversed because:

• The administrative law judge failed to give treating physician, Dr. Turkewitz’s

opinion controlling weight. Plaintiff alternatively seeks a remand under

Sentence 6 of 42 U.S.C. §405(g) for administrative consideration of certain new

and material evidence;

• The administrative law judge erred in concluding that plaintiff did not have a

severe mental impairment;

• The administrative law judge failed to correctly assess plaintiff’s credibility;

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Procedural History. Plaintiff Page filed her application for supplemental

security income on January 26, 2009, alleging that she became disabled on January 1,

2000, at age 24. (PageID 168-70.) The applications were denied initially and upon

reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. 

On February 15, 2011, an administrative law judge held a hearing at which plaintiff,

represented by counsel, appeared and testified. (PageID 58-71.) A vocational expert

also testified. (PageID 73-78.) On March 4, 2011, the administrative law judge issued a

decision finding that Page was not disabled within the meaning of the Act. (PageID 87-

102.) On January 11, 2012, the Appeals Council denied plaintiff’s request for review

and adopted the administrative law judge’s decision as the final decision of the

Commissioner of Social Security. (PageID 49-52.)

Age, Education, and Work Experience. Page was born on January 30, 1975.

(PageID 168, 174.) She has a high school education. (PageID 312, 414.) Page has no past

relevant work. (PageID 100, 186-88.) 

Plaintiff’s Testimony. Plaintiff testified at the administrative hearing that she

experienced her first seizure in August 2007. (PageID 58.) She reported that

she did not have any warning when seizures occurred. (PageID 59.) When describing

her seizures, plaintiff noted: “well, the big one, the grand mal seizures, I have a lot of

convulsing; I bite my tongue a lot during those. I flop around a lot, so I get hurt a lot. I

either get neck strain, I have a bloody tongue, I have blood coming from here to there in

the head, and I have still knots that don’t go away that, you know, where I’ve gotten

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hurt from them.” (PageID 61.) Her other type of seizure she described as “staring

seizures,” she could not hear anything and “blanks out.” (PageID 62.) These “staring

episodes” occur once every two weeks and that they lasted 2 to 3 minutes. (PageID 66.) 

Plaintiff testified that her grand mal seizures occur once every four to six or seven

weeks, but maybe twice in a week. (Id.) She indicated that after having a seizure she

felt terrible, tired, worn out, confused, and scared. (PageID 64.) Plaintiff testified that it

took about an hour to return to normal. (PageID 65.) Plaintiff testified that her

physicians are adjusting/changing her medications to “see how that works.” (PageID

66-67.) A new medication she was taking, Vimpat, caused her to experience bad

headaches 1 to 2 times a week. (PageID 68.) She does not drive, swim or walk alone or

ride a bike. (Id.) 

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will

only briefly summarize that evidence. 

Physical Impairments.

Columbus Southern Medical Center. Plaintiff treated at the Columbus Southern

Medical Center in January 2006 and she returned in May 2009. (PageID 292-303.)

Plaintiff was treated for back pain and anxiety. 

Adena Regional Medical Center. Plaintiff presented to the emergency room at

Adena Regional Medical Center on August 14, 2007 for a seizure. (PageID 249-52, 269-

83.) She stated that her family reported to her that she experienced rigid movements

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and jerking while clutching her arms and curling her hands, and then fell to the floor

and hit the front of her head. (PageID 269.) She awoke confused. (Id.) Urine drug

screen was positive for marijuana. (Id.) Plaintiff was discharged and returned to the

emergency room after having a subsequent episode. (Id.) While in the hospital, a CT

scan of the maxillofacial (upper jawbone and face) area was taken which showed the

possibility of a subtle, non-displaced nasal bone fracture of indeterminate age and could

have represented a chronic finding. (PageID 249.) A CT scan of the head without

contrast showed no acute intracranial abnormality. (PageID 287.) An MRI of the brain

showed a mild degree of mucosal thickening of the ehtmoid sinuses bilaterally with no

other abnormality seen. (PageID 277.) Plaintiff underwent awake and asleep EEGs

which were both normal. Dr. Li noted however that normal EEG do not exclude

epilepsy. (PageID 278-81.) Plaintiff’s discharge diagnoses were seizure disorder and

fractured nose. (PageID 283.) 

An MRI of Page’s lumbar spine taken in March 2009 showed “considerable”

degenerative disc disease, end-plate degeneration and sclerosis at L5-Sl, with no

evidence of significant spinal stenosis, neuroforaminal narrowing or obvious nerve root

impingement. (PageID 243.)

In December 2010, Page presented to the emergency room due to seizure activity. 

(PageID 437-38.) She reported that she had a seizure and fell and hit her head. (Id.) 

While seen in the emergency room, a CT scan was performed which showed no acute

intracranial abnormality. (PageID 439.) CT scan of the cervical spine showed no acute

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abnormality. (PageID 440.) Her Dilantin level was 9.8. Dr. Turkewitz, his treating

neurologist ordered that she take an additional 400 mg. of Dilantin at the ER, and he

increased her Dilantin to 50 mg. a day. She was instructed to follow up with Dr.

Turkewitz. (PageID 438.)

Siyun Li, M.D. Page initially saw Dr. Li on August 21, 2007 for follow-up of her

two episodes of seizures. (PageID 202-04.) Dr. Li found that her seizures were

consistent with generalized seizures and unprovoked. (PageID 203.) He prescribed

Trileptal and advised her against driving for at least 3 months. (Id.)

When seen on September 19, 2007, Page reported that she had one major seizure

two days prior witnessed by her husband. (PageID 233-34.) Page complained of having

frequent small seizures, describing them as shaking activity during her sleep. (Id.) She

also complained of staring spells and stated that she would feel confused and bored

after the events. (Id.) Dr. Li diagnosed Page with seizure disorder and noted that so far

she had developed 3 major seizures described as convulsions. (PageID 234.)

In November 4, 2008, Dr. Li noted that Page had one grand mal seizure in

February 2008. She had not been compliant with her anticonvulsant medication until

about July 2008. Page told Dr. Li that as long as she was taking Dilantin, she had no

seizures. (PageID 212-13.) Dr. Li diagnosed Page with seizure disorder, staring spells of

unknown etiology, and migraine headaches. (Id.) The following month, Page reported

she experienced two episodes of seizures. (PageID 210-11.) Dr. Li diagnosed a seizure

disorder that had not been well controlled with therapeutic phenytoin level. He

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believed that Page needed a different anti-convulsant. Dr. Li reported that Page’s

seizures were usually associated with warnings and they most likely represented

complex partial seizures with secondary generalization. (PageID 211.)

Page reported in January 2009 that she developed side effects from taking

carbamazepine and could not tolerate taking it. (PageID 227-28.) She had experienced

two episodes of seizures since her last visit. (Id.) Dr. Li diagnosed Page with seizure

disorder, epilectic versus nonepilectic and noted that these episodes all occurred after

strong emotion confrontation and could be stress related. (PageID 228.) Dr. Li also

noted that Page experienced staring spells of unknown etiology and migraine

headaches, and advised her to get psychiatric counseling as soon as possible. (Id.) An

EEG taken in February 2009 was normal. (PageID 262-63.)

Page reported in May 2009 that she had another seizure like activity at a funeral

home a few days prior that involved shaking activity for a few minutes and she lost

consciousness. (PageID 308-09.) Dr. Li diagnosed her with seizure disorder, epilectic

versus nonepilectic; migraine headaches; and anxiety, improved with Clonazepam. (Id.)

Dr. Li prepared a narrative on June 19, 2009, reporting that Page began

experiencing seizure activity during August 2007 and had been having intermittent

seizures since the beginning of her seizure disorder. Dr. Li indicated that Page’s seizure

disorder had been difficult to control due to lack of finances and lack of medical

insurance coverage. In order to get her seizure disorder under control, Page would

need to have two or three anticonvulsants and she has difficulty affording those

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medications. Dr. Li also noted that Page had a medical history of anxiety and was

currently being treated for that. (PageID 290.) 

William Bolz, M.D. On September 11, 2009, Dr. Bolz, a state agency physician,

conducted a physical residual functional capacity assessment based on Page’s record. 

(PageID 316-23.) Dr. Bolz found that Page retained the ability to occasionally lift 50

pounds, frequently lift 25 pounds, stand or walk about six hours in an eight-hour

workday, sit for about six hours in an eight-hour work day, and push or pull was

unlimited. (PageID 317.) He found Page could never climb ladders, ropes, or scaffolds. 

(PageID 318.) Page could not perform jobs involving even moderate exposure to

workplace hazards such as unprotected heights, heavy machinery, and commercial

driving. (PageID 320.) Dr. Bolz concluded that Page’s symptoms were attributable to a

medically determinable impairment. (PageID 321.) Dr. Bolz found Page’s statements

were only partially credible, noting that even though Page reported “many more

seizures in the last 2+mo. but no ER visits and TS opines her seizures may be “nonepileptic” with poss. of stress relationship.” (Id.) 

Jason Collins, M.D. Page began treating with Dr. Collins for primary care in

February 2010. (PageID 364-72.) Page reported that for approximately the last 4 years,

she experienced bi-weekly staring seizures and grand mal seizures every 3-4 months.

(PageID 367.) Page complained of headaches and tremors associated with the seizures.

(PageID 368.) Dr. Collins’ diagnosed backache NOS, seizure disorder, anxiety, and

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tobacco use disorder. (PageID 371.) He referred Page to a local neurologist. (PageID

352, 371.) 

Praveen Giri, M.D. Consulting neurologist, Dr. Giri saw Page on February 12,

2010 regarding her seizures. (PageID 349-51.) Page gave a history of seizures the past 4

years and indicated she currently had 3-4 generalized seizures a year and at least 1-3

spells of confusion a week since being on her current combination of Dilantin and

Klonopin. (Id.) Dr. Giri noted Page gave a history suggesting complex partial seizures

with secondary generalization as well as very obvious depression. (Id.)

Lanny Jay Turkewitz, M.D. Page initially saw Dr. Turkewitz, a neurologist, on

June 25, 2010. (PageID 383-85.) He indicated that Page’s history is clear for partial

complex seizures with secondary generalization. (Id.) He ordered a Dilantin level

along with other routine lab work, an MRI and EEG and prescribed Keppra. (PageID

384.) Page followed-up four days later and informed Dr. Turkewitz that Keppra made

her nauseated and dizzy. Dr. Turkewitz prescribed Vinput. (PageID 382.) Dr.

Turkewitz ordered an EEG and MRI in July 2010, which were both normal. (PageID

374-76.) Page reported one seizure each month in July and August 2010. (Page ID 378-

80.) Dr. Turkewitz noted in October 2010 that Page seemed to be doing better but still

was not seizure free. (PageID 411.) In November 2010, Dr. Turkewitz continued Page’s

prescription of Dilantin. (PageID 410.)

Dr. Turkewitz completed a Seizures Residual Functional Capacity Questionnaire

on December 23, 2010. (PageID 393-97.) He described Page’s seizures as intractable and

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noted that Page’s seizures typically lasted for minutes. (PageID 393.) He said that Page

typically did not have the ability to take safety precautions and suffered from postictal

manifestations of confusion and exhaustion. (PageID 394.) Dr. Turkewitz indicated that

Page’s seizures interfered with her daily activities “a great deal.” (PageID 395.) Dr.

Turkewitz was also “not sure” if Page had a history of injury during seizures or had

difficulty controlling her blood levels on medication, and he could not definitively state

that Page had a history of fecal or urinary incontinence during seizure. (Id.) He noted

that Page was compliant with taking medication and that her seizures would likely

disrupt co-workers; require additional supervision at work; and preclude the ability to

work at heights, operate a motor vehicle, or work with power machines. (PageID 395-

96.) Nonetheless, when working she would not have to take unscheduled breaks. In

response to a question asking whether the patient had any other associated mental

problems, Dr. Turkewitz put a checkmark next to depression. He concluded that Page

was capable of performing low stress jobs. (PageID 396.) When asked to explain the

reasons for his conclusion, Dr. Turkewitz simply stated that “[patient] is able.” (PageID

397.) Dr. Turkewitz was “not sure” how many work days per month that Page would

miss because of her impairments or treatment. (Id.) 

Psychological Impairments.

John S. Reece, Psy.D. On August 20, 2009, Dr. Reece evaluated Page at the

request of the Bureau of Disability Determination. (PageID 312-15.) Page reported no

current social activities, she noted her hobby was playing cards with a recent decline in

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her level of interest in socializing or leisure activities. (PageID 312.) Dr. Reece described

Page’s affect as constricted and mood as mildly to moderately anxious/dysphoric with

some weeping. (PageID 313.) Page reported sleep disturbance, crying spells, depressed

mood, and recurrent thoughts of death but no current suicidal or homicidal thoughts. 

(PageID 314.) Page indicated that she felt full of guilt, and worthless and sometimes

hopeless. (Id.) Page described her appetite as fine. She reported having crying spells

and getting depressed but no current suicidal ideation. Page said her energy level is

low and she had trouble falling asleep. Page exhibited no outward signs of anxiety. 

Page stated she has had panic attacks about 2-3 times a year but none in the past 2

months. Dr. Reece diagnosed Page with depressive disorder not otherwise specified

and anxiety disorder not otherwise specified, and assigned her a current Global

Assessment of Functioning (“GAF”) of 65. (Id.) He noted that her excessive anxiety and

worry caused significant distress in her social and occupational functioning. (PageID

315.) Dr. Reece opined that Page’s ability to handle work stress was mildly impaired by

depression, anxiety, low self-esteem, excessive worry, and poor energy level, but Page

otherwise had no work-related mental impairments. (Id.)

Katherine Lewis, Psy.D. On September 16, 2009, Dr. Lewis, a psychologist,

completed a psychiatric review technique and mental residual functional capacity

assessment. (PageID 324-57.) Dr. Lewis concluded that Page had mild restriction of

activities of daily living, no difficulties in maintaining social functioning, mild

difficulties in maintaining concentration, persistence or pace, and no episodes of

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decompensation. (PageID 334.) Page further determined that the evidence did not

establish the presence of the “C” criteria. (PageID 335.) In a narrative assessment of

Page’s ability to engage in work-related activities from a mental standpoint, Dr. Lewis

found that Page did not have a severe mental impairment. (PageID 336.)

 Scioto Paint Valley Mental Health Center. Page was initially assessed at the

Scioto Paint Valley Mental Health Center on August 4, 2010. (PageID 413-18.) She

reported feeling depressed and anxious. Her father had died two months before. She

had lost her home the same week and was now living in the windowless basement of

her in-laws’ home. There was friction between her and her in-laws. Her husband had

been laid off work earlier the week of her first visit to Scioto Paint Valley. (PageID 413.) 

Page reported physical abuse, domestic abuse, and sexual abuse, apparently in an

earlier marriage. As a child she had one psychiatric hospitalization. Page also reported

that she had panic attacks. Further, when she got overwhelmed with stress she would

have a seizure. (PageID 416.) Page said she felt like everything was caving in on her.

She also experienced frustration about her seizures. On bad days they prevented her

from driving. (PageID 417.) Although the intake form asked for information concerning

drug use, including use of marijuana, Page did not fill in that part of the form.

Following a mental status examination, Page was diagnosed with adjustment disorder

with mixed anxiety and depressed mood rule out depressive disorder. Page was

assigned a GAF of 51. (PageID 418.) Individual counseling was recommended. (PageID

417.) The record shows two additional dates of treatment, September 29, 2010 and

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October 20, 2010, Page discussed her living situation and depression, which she

described on the first of those visits as worsening. On the last visit, the counselor

helped Page contact Home for Hopes to see if she and her husband qualified so they

could move out of her in-laws’ basement.(PageID 422-23.) 

Appeal Council Documents/Leon Rosenberg, M.D. The first Progress Notes

from Dr. Rosenberg, a neurologist, are dated April 14, 2011. (PageID 453-56.) They state

this was a return visit. Oh her last visit, five months before, Page was “doing well and

no changes were made to the medication regimen. On the April 14 visit, she complained

of marked anxiety and depressions, as well as worsening headaches. (PageID 452.) Her

most recent seizure episode was two days prior with no precipitating factors. (Id.) Dr.

Rosenberg assessment was complex partial seizure with secondary generalization,

intractable generalized major motor seizures, generalized anxiety disorder, and

depression. He stressed with Page the need for compliance with prescribed medicines

and instructed her not to drive until further notice. She was to return in a month.

(PageID 455) Dr. Rosenberg discussed safety issues with frequent seizures and told

Page “she is currently totally disabled for any work.” (PageID 456.)

Gretchen Horner, CNP completed a Seizures Residual Functional Capacity

questionnaire on May 16, 2011. (PageID 447-51.) Dr. Rosenberg signed this

questionnaire on August 31, 2011. (PageID 451.) CNP Horner reported she began

treating Page on June 25, 2010 and saw her every one to 3 months. Page’s diagnoses

were listed as complete partial seizures with secondary generalization, generalized

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major motor seizures, and anxiety and depression. (PageID 447.) CNP Horner opined

that Page’s seizures were both generalized and localized, and there was a loss of

consciousness. (Id.) Page’s partial seizures occurred one to two times per week and her

generalized motor seizures occurred one to two times per month. (Id.)

CNP Horner noted that Page did not always have a warning of an impending

seizures and her seizures did not occur at any particular time of day. (PageID 448.) 

CNP Horner checked off that someone must put something soft under her head, loosen

her tight clothing, clear the area of hard of sharp objects, and, after the seizure, turn

Page on her side to allow saliva to drain from her mouth. (Id.) CNP Horner noted that

Page’s postictal manifestations would include confusion, severe headache, exhaustion,

muscle strain, and irritability. (Id.) She did not know how long Page’s postictal

manifestations would last. (Id.) CNP Horner indicated that Page had a history of fecal

and/or urinary incontinence during the seizure. (PageID 449. ) CNP Horner opined

that Page’s seizures were likely to disrupt the work of her coworkers and that she

would need more supervision at work than an unimpaired worker. (PageID 450.) She

reported that Page should not work with power machines that require an alert operator. 

(Id.) CNP Horner also reported that Page would need to take unscheduled breaks of 15-

45 minutes 1 to 2 times per week. (Id.) CNP Horner opined that stress increased Page’s

seizure frequency and she did have “good” and “bad” days. (PageID 451.) She noted

that Page would need to avoid stress, deadlines, climbing, heights or ladders, and

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driving. (Id.) CNP Horner estimated that Page would be absent four or more times per

month. (Id.) 

Administrative Law Judge’s Findings. The administrative law judge found

that:

1. Based on the claimant’s earnings record, the claimant has not engaged in

SGA since January 26, 2009, the application date (20 CFR 416.971 et seq.).

2. Based on the objective medical evidence, the claimant has the following

severe impairments: degenerative disc disease of the lumbar spine and a

complex partial seizure disorder (20 CFR 416.920(c)).

3. Based on the objective medical evidence, the claimant does not have an

impairment or combination of impairments that meets or medically equals

one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20

CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, it is determined that the

claimant has the residual functional capacity to perform medium work as

defined in 20 CFR 416.967(c) subject to the following: (1) the claimant is able

to lift, carry, push and pull up to 50 pounds occasionally and up to 25

pounds frequently: (2) the claimant is able to sit, stand and walk for up to 6

hours each in an 8-hour workday: and (3) the claimant is unable to climb

ladders, ropes and scaffolds and unable to perform work activity requiring

exposure to hazards such as moving machinery or unprotected heights.

5. Based on the claimant’s earnings record, the claimant has no past relevant

work (20 CFR 416.965).

6. The claimant was born on January 30, 1975 and was 33 years old, which is

defined as a younger individual age 18-49, on the date the application was

filed (20 CFR 416.963).

7. The claimant has at least a high school education and is able to

communicate in English (20 CFR 416.964)

8. Transferability of job skills is not an issue because the claimant does not

have past relevant work (20 CFR 416.968).

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9. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform (20 CFR 416.969 and

416.969(a)).

10. Because there are jobs that exist in significant numbers in the national

economy that the claimant can perform, the claimant has not been under a

disability, as defied in the Social Security Act, since January 26, 2009, the

date the application was filed (20 CFR 416.920(g)).

(PageID 89-102, citation to record omitted.)

Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings

of the Commissioner as to any fact, if supported by substantial evidence, shall be

conclusive. . . .” Substantial evidence is “‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,

401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is

“‘more than a mere scintilla.’” Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.

1976). The Commissioner’s findings of fact must be based upon the record as a whole. 

Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366

(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining

whether the Commissioner’s decision is supported by substantial evidence, the Court

must “‘take into account whatever in the record fairly detracts from its weight.’” Beavers

v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and

Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

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Plaintiff’s Arguments. Page argues that the decision of the Commissioner

denying benefits should be reversed because:

• The administrative law judge failed to give Dr. Turkewitz’s opinion

controlling weight. (Doc. No. 13 at PageID 470.) Page argues that the

administrative law judge fell short of recognizing the applicability of the 20

C.F.R. §416.927(d)(2) guidelines and failed to provide a supported explanation

as to why the reports and conclusions of Dr. Turkewitz, a neurologist, coupled

with her testimony and the record as a whole, were not adopted or granted

deference or at least any credibility with regard to the severity of her

impairments. (Id.) Page also argues that Dr. Turkewitz’s opinion is consistent

with the August 2011 opinion of Dr. Rosenberg, a neurologist. Dr.

Rosenberg’s opinion would warrant a sixth sentence remand under 42 U.S.C.S.

§ 405(g). (Id. at PageID 473.) 

• The administrative law judge erred in concluding that plaintiff did not have a

severe mental impairment. Page argues that the GAF score assigned by the

examining psychologist, Dr. Reece underestimates the severity of her mental

impairments. (Id. at PageID 475.) In addition, Page contends that the

numerous references to depression and anxiety in the claim file reflect an

impairment that is “severe” and perhaps even disabling in and of itself.

• The administrative law judge failed to correctly assess the plaintiff’s

credibility. Page argues that the administrative law judge failed to conduct the

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“Social Security Rulings do not have the force and effect of law, but are ‘binding on all

components of the Social Security Administration’ and represent ‘precedent final opinions and orders and

statements of policy and interpretations’ adopted by the Commissioner.” Ferguson v. Comm’r of Soc.

Sec., 628 F.3d 269, 273, n.1 (6th Cir. 2010) (quoting 20 C.F.R. § 402.35(b)(1)). Social Security Rulings

have been assumed to be binding on the Commissioner in the same way as Social Security Regulations.

See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004); Ferguson, 628 F.3d at 273, n.1. In

this case, the Court makes the same assumption regarding Social Security Ruling 02-1p. 

17

proper credibility analysis and failed to make the proper findings pursuant to

Social Security Ruling1 (SSR) 96-7p.

Analysis. 

Treating physician. Page first maintains that the administrative law judge erred

in rejecting the opinions of Dr. Turkewitz, one of her treating neurologist, who had

assessed Page’s residual functional capacity related to her seizure activity. Within this

contention of error, Page also indicates that the August 2011 opinion of Dr. Rosenberg,

also a neurologist, supports the opinion of Dr. Turkewitz. According to Page, Dr.

Rosenberg’s opinion would warrant a sixth sentence remand under 42 U.S.C.S. § 405(g). 

The treating physician rule, when applicable, requires the administrative law

judge to place controlling weight on a treating physician’s or treating psychologist’s

opinion rather than favoring the opinion of a nonexamining medical advisor or a onetime examining physician or psychologist or a medical advisor who testified before the

administrative law judge. Blakley v. Comm’r. of Social Security, 581 F.3d 399, 406 (6th Cir.

2009); See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The

administrative law judge ‘will’ give a treating source opinion controlling weight if it ‘is

well-supported by medically acceptable clinical and laboratory diagnostic techniques

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and is not inconsistent with the other substantial evidence in your case record. Cole v.

Commissioner of Social Security, 652 F.3d 653, 659 (6th Cir. 2011). Furthermore, the

Commissioner’s regulations provide that he will generally “give more weight to the

opinion of a source who has examined you than to the opinion of a source who has not

examined you.” 20 C.F.R. § 416.927(d)(1). When a treating source’s opinion “is

well-supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in your case record, we will

give it controlling weight.” 20 C.F.R. § 416.927(d)(2). In determining the weight to

assign a treating source’s opinion, the Commissioner considers the length of the

relationship and frequency of examination; nature and extent of the treatment

relationship; how well-supported the opinion is by medical signs and laboratory

findings; its consistency with the record as a whole; the treating source’s specialization;

the source’s familiarity with the Social Security program and understanding of its

evidentiary requirements; and the extent to which the source is familiar with other

information in the case record relevant to decision. (Id.)

There is a rebuttable presumption that a treating physician’s opinion is entitled

to great deference. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). 

However, for the treating physician’s opinion to have controlling weight it must have

“sufficient data to support the diagnosis.” Kirk v. Secretary of Health and Human Services,

667 F.2d 524, 536, 538 (6th Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). 

The Commissioner may reject the treating doctor’s opinions when “good reasons are

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identified for not accepting them.” Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); 20

C.F.R. § 416.927(d)(2)(“We will always give good reasons in our notice of determination

or decision for the weight we give your treating source’s opinion”); Wilson, 378 F.3d at

544 (6th Cir. 2004). 

In formulating Page’s physical residual functional capacity, the administrative

law judge adopted the assessment of the state agency physician, Dr. Bolz. (PageID 98.) 

Plaintiff argues the administrative law judge cannot rely on the opinions of reviewing

physicians to justify her residual functional capacity assessment, when they “ignored

the non-exertional impairments that Ms. Page has due to her seizures.” (Doc. 13 at

PageID 474.) However, the opinions of non-examining state agency medical consultants

have some value and can, under some circumstances, be given significant weight. This

occurs because the Commissioner views nonexamining sources “as highly qualified

physicians and psychologists who are experts in the evaluation of the medical issues in

disability claims under the [Social Security] Act.” Social Security Ruling 96-6p. 

Consequently, opinions of one-time record-reviewing physicians are weighed under the

same factors as treating physicians including supportability, consistency, and

specialization. See 20 C.F.R. §416.972(d), (f). Dr. Bolz specifically restricted Page to

avoid even moderate exposure to work hazards and she could never climb ladders,

ropes, or scaffolds to account for her seizures. See PageID 318, 320.

In discussing Dr. Turkewitz’s opinion, the administrative law judge noted:

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The BDD assessment is consistent with the other opinion evidence in this

case, which, notably, does not conclude that the claimant is unable to

work due to her medically determinable impairments (Exhibit 9F at p. 1

and Exhibit 22F at pp. 2-5). The evidence received into the record after the

reconsideration determination concerning the claimant’s physical status

did not provide any credible or objectively supported new and material

information that would alter the BDD's findings concerning the claimant's

physical limitations.

(PageID 98.) Plaintiff contends that, “The administrative law judge makes no mention

of Dr. Turkewitz’s opinion or a determination as to whether Dr. Turkewitz’s opinion is

entitled to great weight as a treating physician.” See Doc. 13 at PageID 471. Although

the administrative law judge does not mention Dr. Turkewitz by name, a review of the

decision, clearly shows that the administrative law judge followed 20 CFR 416.927 and

properly did not accept Dr. Turkewitz’s opinion. See PageID 98.

Dr. Turkewitz’s opinion contains no rationale for the conclusions reached. For

example, Dr. Turkewitz simply stated that “[patient] is able.” (PageID 397.) Dr.

Turkewitz also reported that the average frequency of Page’s seizures “varies greatly”

but could not provide the dates of Page’s recent seizures. (PageID 393.) Dr. Turkewitz

was also “not sure” if Plaintiff had a history of injury during seizures or had difficulty

controlling her blood levels on medication, and he could not definitively state that

Plaintiff had a history of fecal or urinary incontinence during seizure. (PageID 395.) Dr.

Turkewitz again was “not sure” how many work days per month that Plaintiff would

miss because of her impairments or treatment. (PageID 397.)

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Remand Pursuant to Sentence Six. When the Appeals Council denies a

claimant’s request for review, the decision of the administrative law judge becomes the

final decision of the Commissioner. Casey v. Secy. of Health and Human Services, 987 F.2d

1230, 1233 (6th Cir. 1993). This Court reviews the administrative law judge’s decision,

not that of the Appeals Council denying the request for review. Id. Consequently, only

evidence of record before the administrative law judge may be considered by the

District Court in reviewing the final decision of the Commissioner of Social Security

denying benefits. Cline v. Comm’r. of Social Security, 96 F.3d 146, 148-49 (6th Cir. 1996).

A claimant may seek remand so that the evidence presented to the Appeals Council can

be considered by the administrative law judge. Id.; Gartman v. Apfel, 220 F.3d 918, 922

(8th Cir. 2000).

Section 405(g), sentence six, provides, in relevant part:

The court may . . . at any time order additional evidence to

be taken before the [Commissioner], but only upon a

showing that there is new evidence which is material and

that there is good cause for the failure to incorporate such

evidence into the record in a prior proceeding . . . .

The evidence supporting a motion to remand must be both new and material. Cline v.

Commissioner, 96 F.3d 146, 148 (6th Cir. 1996). Evidence is “new only if it was ‘not in

existence or available to the claimant at the time of the administrative proceeding.’

Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990).” Foster v. Halter, 279 F.3d 348, 357 (6th

Cir. 2001). It is material “only if there is 'a reasonable probability that the

[Commissioner] would have reached a different disposition of the disability claim if

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presented with the new evidence.’ Sizemore v. Secretary of Health & Human Services, 865

F.2d 709, 711 (6th Cir. 1988).” Id. Good cause is shown by demonstrating a reasonable

justification for the failure to acquire and present the evidence for inclusion in the

hearing before the administrative law judge. Willis v. Secretary of Health & Human

Services, 727 F.2d 551, 554 (1984)(per curiam). Id. Merely cumulative evidence does not

establish good cause for a remand. Borman v. Heckler, 706 F.2d 564, 568 (6th Cir. 1983);

Carroll v. Califano, 619 F.2d 1157, 1162 (6th Cir. 1980). The plaintiff has the burden of

establishing that the evidence is new and material and that there is good cause for not

having presented the evidence to the Administrative Law Judge. Id., citing, Oliver v.

Secretary of Health & Human Services, 804 F.2d 964, 966 (6th Cir. 1986).

Plaintiff seeks remand based on the Seizures Residual Functional Capacity

questionnaire completed by Gretchen Horner, CNP on May 16, 2011 and signed by Dr.

Rosenberg on August 31, 2011. (PageID 447-51.) According to plaintiff, the responses to

this questionnaire are consistent with and support the opinion of Dr. Turkewitz. (Doc.

13 at PageID 472.) Plaintiff argues that Dr. Rosenberg did not start treating Page until

April 14, 2011, after the hearing has already taken place. Furthermore, according to

Page, this report continued to corroborate Dr. Turkewitz’s opinion and shows

that her seizures are disabling. 

Here, the newly submitted evidence is not material because it is unlikely that the

administrative law judge would have reached a different disposition of the disability

claim if presented with this evidence. Even though plaintiff argues that Dr. Rosenberg

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did not begin treating Plaintiff until after the administrative law judge’s decision, it is

insignificant because plaintiff fails to acknowledge that CNP Horner, and not Dr.

Rosenberg completed this opinion. CNP Horner noted that she began treating Page in

June 2010 and Page has failed to show good cause for her failure to submit the opinion

prior to the administrative law judge’s decision. Plaintiff has failed to demonstrate

good cause for failing to present this evidence to the administrative law judge. Plaintiff

has not provided any explanation for why this evidence could not have been obtained

prior to the hearing. 

Credibility.

Plaintiff’s next claim of error finds fault with the administrative law judge’s

conclusion that her testimony was not entirely credible. Specifically, Page claims that

the administrative law judge failed to consider the factors listed in Social Security

Ruling 96-7p. Plaintiff alleges that the administrative law judge incorrectly noted that 

Page’s allegations of disability due to her seizure disorder were not consistent with

objective medical evidence which did not document epilepsy. Plaintiff argues she has

never alleged that she suffers from epilepsy. Page further notes the administrative law

judge incorrectly found she was not compliant with her medication and that her alleged

seizure disorder was concurrent with her abuse of marijuana. (Doc. No. 12 at PageID

477-79.) 

An administrative law judge “is not required to accept a claimant’s subjective

complaints and may consider the credibility of a claimant when making a

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determination of disability.” Jones v. Comm’r of Soc. Sec., 336 F.3d at 469, 476 (6th Cir.

2003), citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). An

administrative law judge’s credibility determinations about a claimant are to be given

great weight. However, they must also be supported by substantial evidence. Cruse v.

Comm’r of Soc. Sec., 502 F.3d 532, 542 (6th Cir. 2007). “Discounting credibility to a certain

degree is appropriate where an administrative law judge finds contradictions among

medical reports, claimant’s testimony, and other evidence.” Walters, 127 F.3d at 531,

citing Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1227 (6th Cir. 1988).

In the instant case, the record is replete with objective medical evidence

indicating that plaintiff had medically determinable impairments. The administrative

law judge acknowledged these impairments, and further recognizes that these

impairments “could reasonably be expected to produce [plaintiff’s] pain or other

symptoms.” (PageID 96.) The administrative law judge determined, however, that after

considering the intensity, persistence, and limiting effect of Page’s impairments, she

was capable of medium exertional work. (Id.) In making this credibility determination,

the administrative law judge properly relied on the record evidence, including objective

medical findings and plaintiff’s own statements about her daily activities. See 20 C.F.R.

§ 416.929(c)(2) (objective medical findings are useful in assessing the intensity and

persistence of a claimant’s symptoms) and 20 C.F.R. § 416.929(c)(3)(i) (daily activities

may be useful to assess nature and severity of claimant’s symptoms).

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As to the three points plaintiff makes above, the administrative law judge

determined that Page’s seizure disorder was not documented by objective evidence,

MRI results of the claimant's brain from August 2007 were normal

(Exhibit 8F at p. 30). CT imaging results of the claimant's head from

August 2007 were also normal (Exhibit 8F at pp. 40-42). Awake and

asleep EEG results from August 2007 were bot h normal (Exhibit 8F at pp.

31-34). A treatment note from January 2009 reports that recent awake and

asleep EEG results were also each normal (Exhibit 4F at p. 2). A February

2009 EEG was normal (Exhibit 8F at p. 15). EEG and MRI results from July

2010 were also both normal (Exhibit 20F at pp. 2- 4). The claimant

repeatedly demonstrated normal coordination, cognition, speech, cerebral

functioning and intact recent and remote memories (Exhibit IF at p. 2,

Exhibit 2F at pp. 2 and 4, Exhibit 4F at pp. 2 and 8, Exhibit 8F at pp. 26-27,

Exhibit 11F at p. 5, Exhibit l6F at pp. 2-3, Exhibit 26F at pp. 3-4 and Exhibit

29F at p. 4).

(PageID 97.) 20 C.F.R. § 416.929(b) (objective medical evidence is a useful indicator in

assessing severity of alleged symptoms). 

The administrative law judge also found the medical evidence showed Page’s

seizures responded well to prescribed medication. PageID 97, citing to PageID 212. The

administrative law judge also noted the evidence documents that Plaintiff was not

always fully compliant with prescribed treatment for her alleged seizures. (Id. citing to

PageID 212, 381.) Finally, the administrative law judge noted that some of Page’s

alleged seizure episodes are also concurrent with the her abuse of marijuana. When

plaintiff presented to the emergency room at Adena Regional Medical Center on

August 14, 2007 for a seizure, her urine drug screen was positive for marijuana. (PageID

249-52, 269-83.) Her husband also reported that she abused marijuana for many years. 

(Id.)

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Further, the administrative law judge found that plaintiff’s statements regarding

her varied activities contradict her allegations concerning the intensity, duration, and

limiting effects of her symptoms. (PageID 98.) The administrative law judge noted that

plaintiff stated that she visits her mother and sister on a daily basis (PageID 91, citing to

PageID 314, 417). Plaintiff reported she is able to take care of personal grooming, is able

to perform household, cleaning and chores and reportedly spends her day doing light

housework. (PageID 90, citing to PageID 314.) The administrative law judge also found

that plaintiff can perform yard work, including pulling weeds and watering plants,

shops in stores with her husband, is able to perform money management activities such

as paying bills, counting change, handling a savings account and using a checkbook and

money orders independently and without difficulty, and is able to use public

transportation without difficulty. (PageID 90.) It was not improper for the

administrative law judge to consider Plaintiff’s ability to engage in activities of daily

living in assessing the credibility of his claims to be unable to work. Warner v. Comm’r

of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004), citing Walters, 127 F.3d at 532. 

Based upon the foregoing, the undersigned finds that the administrative law

judge’s assessment of plaintiff’s credibility was based on consideration of the entire

record and is supported by substantial evidence. Accordingly, applying the applicable

deferential standard of review, the undersigned concludes that the administrative law

judge’s credibility determination was not erroneous.

Severe Mental Impairment

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Page contends that the administrative law judge erred in finding that she did not

suffer from severe disabling mental impairments. Plaintiff argues that references to

depression and anxiety in the claim file reflect an impairment that is “severe” and

perhaps even disabling in and of itself. See Doc. 13 at PageID 477. In addition, Page

contends that the GAF score of 65 assigned by the consulting psychologist, Dr. Reece

underestimated the severity of Page’s mental impairments.

Step 2 of the sequential analysis – determining whether the claimant has a severe

impairment – creates “a de minimis hurdle in the disability determination process.... 

Under the ... de minimis view, an impairment can be considered not severe only if it is a

slight abnormality that minimally affects work ability regardless of age, education, and

experience.” Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). The purpose of this very

low evidentiary hurdle is to “screen out claims that are ‘totally groundless.’” Higgs, 880

F.2d at 862 (quoting in part Farris v. Secretary of Health and Human Services, 773 F.2d 85,

89-90 (6th Cir. 1985)). The Higgs Court characterized the dismissal of a disability claim at

Step 2 based on medical evidence alone as “exceptional.” 880 F.2d at 863.

The administrative law judge’s decision contains almost 5 pages wherein he 

addresses Page’s depression and anxiety. See PageID 90-94. Although Page argues that

she has a “severe” mental impairment, there is no evidence in the record to substantiate

her claims. Page did not seek therapy or was treated by a psychiatrist or psychologist

until August 2010. As the administrative law judge notes, the absence of psychological

counseling would not be expected if the claimant's medically determinable mental

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impairments were “severe” within the meaning of the Regulations. (PageID 93.) 

Furthermore, Dr. Lewis found that Plaintiff did not have a severe mental impairment. 

(PageID 336.) The administrative law judge also noted that Dr. Reece found that

Plaintiff’s ability to handle work stress was only mildly impaired but Plaintiff otherwise

had no work-related mental impairments. (PageID 315.) The undersigned concludes

that the administrative law judge’s failure to find Page’s depression an additional

severe impairment at step two is not reversible error.

Accordingly, it is RECOMMENDED that the decision of the Commissioner of

Social Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s

motion for summary judgment be DENIED and that defendant’s motion for summary

judgment be GRANTED.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

 s/Mark R. Abel 

United States Magistrate Judge

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